Price v State of New South Wales (NSW Police Force)

DETERMINATION OF APPEAL PANEL
CITATION:	Price v State of New South Wales (NSW Police Force) [2022] NSWPICMP 264
APPELLANT:	Anthony Price
RESPONDENT:	State of NSW (NSW Police Force)
APPEAL PANEL:
MEMBER	William Dalley
MEDICAL ASSESSOR	Michael Hong
MEDICAL ASSESSOR	Julian Parmegiani
DATE OF DECISION:	28 June 2022
CATCHWORDS:	WORKERS COMPENSATION – The appellant worker alleged error with respect to the assessment of impairment arising from psychological injury in three respects; submitted that the Medical Assessor (MA) had failed to consider whether there was a causal connection between the effects of the subject injury and the effects of a subsequent injurious event when deducting one quarter for the subsequent events; secondly, the MA had assessed four of the areas of function described in paragraph 11.11 of the NSW workers compensation guidelines for the evaluation of permanent impairment 4th edition (Guidelines) contrary to the weight of the evidence; and thirdly the MA had incorrectly aggregated the Psychiatric Impairment Rating Scale (PIRS) scores; Held – the MA had failed to consider whether there was a causal connection between the impairment arising from the subject psychological injury and the subsequent impairment; Secretary, New South Wales Department of Education v Johnson and State Government Insurance Commission v Oakley (Oakley) considered; impairment arising from the subsequent injury fell into the second Oakley category and no deduction was warranted; the assessments of the PIRS areas of function were open on the evidence and no error or adoption of incorrect criteria was made out; the mathematical error was corrected; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 21 March 2022 Anthony Price (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Douglas Andrews, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 28 February 2022.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the grounds of appeal on which the appeal is made.
The Personal Injury Commission Rules 2021 (the PIC Rules), and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, reissued 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

The appellant developed a psychological injury in the course of his employment as a police officer with the respondent, the New South Wales Police Force. The psychological injury was one of gradual onset and is deemed to have occurred on 1 February 2017.
In 2010 Mr Price consulted his general practitioner regarding his emotional state. He continued to suffer psychological symptoms and, in 2012, was referred to a psychiatrist, Dr Pavan Bhandari, who diagnosed post-traumatic stress disorder and Major depressive disorder.
Mr Price had time off work, returning to work in November 2013. Mr Price continued to suffer psychological symptoms and again went off work for a period, returning on a graded return to work program in mid-June 2014. Mr Price continued to receive treatment from his psychiatrist and psychologist, Ms Anne Sharkey.
In 2017 Mr Price was informed that he was under investigation in relation to offences alleged to have occurred when he was a teenager and prior to his service with the respondent. He was subsequently suspended from duty and discharged from the Police Force on 12 February 2020.
In October 2019 Mr Price was examined by a psychiatrist, Dr Anand, at the request of the insurer. Dr Anand diagnosed Mr Price as suffering Post-Traumatic Stress Disorder and Major Depressive Disorder due to exposure to multiple traumatic events over the years with the respondent. Dr Anand was of the opinion that Mr Price had no capacity to resume his pre-injury duties and required ongoing psychiatric and psychological support.
On 8 July 2021 Mr Price was examined by a consultant psychiatrist, Dr Ash Takyar, at the request of Mr Price’s solicitors for the purposes of a lump sum claim for compensation pursuant to s 66 of the Workers Compensation Act 1987. Dr Takyar diagnosed Mr Price as suffering Post-Traumatic Stress Disorder, a Major Depressive Disorder and an Alcoholic Use Disorder and assessed him as suffering 25% whole person impairment (WPI) as a result of psychological injury.
Mr Price’s solicitors made a claim in accordance with that assessment. Dr Anand again examined Mr Price in September 2021 at the request of the insurer. Dr Anand assessed Mr Price as suffering 11% WPI. That assessment included 2% WPI for the effects of treatment.
The medical dispute as to the extent of impairment arising from the subject psychological injury was referred to the Medical Assessor who examined Mr Price on 24 February 2022. The Medical Assessor diagnosed post-traumatic stress disorder, persistent depressive disorder with a major depressive episode and anxious distress, and an alcohol use disorder. He assessed Mr Price as suffering 8% WPI, but reduced this by one quarter, attributable to the effects of Mr Price’s arrest and conviction for the offences committed prior to his entering upon duty as a police officer.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties.
The appellant requested that Mr Price should be re-examined by a Medical Assessor member of the Panel. As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination. There was sufficient information available to the Panel to allow the appeal to be determined. Although error was established with regard to the deduction made by the Medical Assessor in respect of a subsequent condition, no error or adoption of incorrect criteria was established in respect of the assessment of impairment. Re-examination of the appellant was therefore unlikely to assist in determination of the appeal.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submits that the Medical Assessor fell into error in three respects, by discounting the impairment in respect of the effects of a subsequent event, the assessment of four of the areas of function described in Paragraph 11.11 of the Guidelines and in calculating the aggregate score obtained in respect of each of the six areas of function.
In reply, the respondent submits that the Medical Assessor appropriately made a deduction in respect of the subsequent events as he was obliged to assess impairment resulting from the subject injury. The assessments by the Medical Assessor in respect of the areas of function complained of were open to the Medical Assessor as a matter of clinical judgement on the evidence before him. The respondent appropriately conceded the mathematical error in aggregating the scores for each area of function but noted that this was capable of administrative amendment[1].
[1] Section 325 (3) 1998 Act.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan[2] the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
[2] [2006] NSWCA 284
It is appropriate to deal separately with each of the three areas of alleged error relied upon by the appellant.

Deduction with respect to the effects of arrest and conviction

The appellant submitted that the deduction of one quarter made by the Medical Assessor with respect to the effects of Mr Price’s charging and conviction for offences committed prior to his entry into service with the respondent was “beyond the powers exerciseable by the AMS [Medical Assessor] under ss319 and 326 of the WIMA [the 1998 Act]”.
The respondent, in reply, noted that the Medical Assessor had considered Mr Price’s arrest and conviction as constituting further injuries after the primary work injury and to have caused additional impairment. The respondent noted “He [the Medical Assessor] notes it is impossible to exclude that impairment by separation, and it is necessary to use apportionment, relying on clinical experience and expertise.”.
The Medical Assessor noted the history:
“He had been doing well early in 2017 and was considering disengaging from treatment. He had opportunities to act up in the Sergeant’s role and considered applying for promotion.
During that year, he was charged with the historical indecent assault of a minor girl, an offence that occurred when he was about 14 years old. Despite his age at the time of the offence, he was tried as an adult and convicted on four charges.
He was suspended from the NSWPF in February 2018 and discharged for ‘breach of the code of conduct’ in February 2020”.
Mr Price informed the Medical Assessor that he believed that his dismissal was “unfair, politically motivated and unlawful, given that the offence occurred when he was a young teenager and (he believes) not subject to the police Code of Conduct”.
The Medical Assessor noted that Mr Price’s condition “had significantly deteriorated after he was charged and with the consequences that followed.” Under the heading “Details of any previous or subsequent accidents, injuries or conditions” the Medical Assessor recorded:
“His charges and conviction for indecent assault for events that occurred 25 years earlier had nothing to do with his police career. They have had a significant impact on his emotional well-being and need to be considered a subsequent injury. Mr Price alleges that he has been treated unfairly, even ‘unlawfully’, by the Courts and NSWPF, still a subject of appeal.”
The form of the MAC approved pursuant to s 325(2) at the time of assessment required the Medical Assessor to “Indicate whether there has been any further injury subsequent to the subject work injury. If this injury has caused any additional impairment, this should not be included with the assessment of impairment due to the subject work injury.”[3] The Medical Assessor recorded:
“Mr Price’s arrest and conviction for indecent assault of a minor are further injuries after the primary work injury and cause additional impairment. It is impossible to exclude that impairment by separation, and it is necessary to use apportionment, relying on clinical experience and expertise.”
[3] MAC paragraph 8g.
The Medical Assessor explained his calculations[4] :
“I consider that Mr Price had a subsequent injury when he was arrested and later convicted for historical indecent assault charges. This was a profound event and would distress almost anyone. As a consequence, Mr Price was given a good behaviour bond, required to do community service and put on the sex offender register. He faced disciplinary action and dismissal from the NSW PF for breaching the code of conduct. He argues that the dismissal was unfair, politically motivated and unlawful, but it stands.
The subsequent injury did not relate to his work with the NSWPF and would have happened whatever his chosen career. The subsequent injury exacerbated all three of his mental health conditions. I consider that Mr Price had mental health problems over several years before his arrest and conviction. I also note that he was quite well and would have had a low level of impairment early in 2017 before becoming aware of the charges.
I considered that the years of exposure to trauma while a police officer contributes significantly to current impairment. I determined that one quarter of this impairment can be attributed to the subsequent injury and three quarters of the impairment to primary injuries.”
[4] MAC paragraph 10b.
In assessing the extent of impairment resulting from injury the Medical Assessor reduced his assessment of impairment resulting from injury from 8% WPI to 6% WPI.
The assessment of impairment where there has been a subsequent injury has been addressed by the Court of Appeal in a number of cases[5]. In Secretary, New South Wales Department of Education v Johnson[6], Emmett AJA referred to the decision of Malcolm CJ in State Government Insurance Commission v Oakley[7] (Oakley) and said (at [70]):
“The question for determination by the Appeal Panel was the degree of permanent impairment now suffered by the Worker as a result of the First Injury. That question was one of fact and the Appeal Panel’s reasoning was consistent with conventional principles of causation. There are three possible categories where an earlier injury is followed by a later injury, as follows:
·Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
·Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
·Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
[5] See Jeffries v Roads and Traffic Authority of NSW [1997] NSWCA 167; Caltex Tanker Co (Aust) Pty Ltd v Robert Kerr [1999] NSWCA 15; Government Insurance Office of NSW v Aboushadi [1999] NSWCA 396.
[6] [2019] NSWCA 321 (Macfarlan JA agreeing and Simpson AJA to similar effect at [126]).
[7] 1990 10 MVR 570; [1990] Aust Torts Reports 81-003.
In that decision Emmett AJA and Simpson AJA (Macfarlan JA agreeing) held that the Medical Panel fell into error in failing to consider into which of the Oakley categories the worker fell. The Panel accepts that this was a necessary step that should have been taken by the Medical Assessor in the present case. It appears from the MAC that the Medical Assessor has assessed the subsequent events as falling within the third Oakley category. The MAC does not disclose whether the Medical Assessor considered the question of whether there was a causal relationship between the original injury and the damage subsequently sustained. Rather, the Medical Assessor appears to have based his reasoning on the fact that there was no relationship between the cause of the first injury and the later arrest, charging, conviction and subsequent dismissal without considering whether the later events exacerbated the condition caused by the first injury.
The Panel is satisfied that the MAC discloses error in so far as the Medical Assessor failed to consider whether effects of the earlier injury had been exacerbated by the subsequent events.
The Medical Assessor attributed three quarters of the impairment to the first injury. This appears to be at odds with the Medical Assessor’s observation that “he was quite well and would have had a low level of impairment early in 2017 before becoming aware of the charges”[8].
[8] MAC page 6, paragraph 10b.
The Medical Assessor stated that the subsequent arrest, charging and conviction “was a profound event and would distress almost anyone.” Although the Panel accepts that such a series of events would be distressing, the Panel does not accept that they would, of themselves, give rise to psychiatric or psychological injury in the absence of a pre-existing psychological condition.
The Panel accepts that, at the time he became aware of the charges and subsequent arrest, charging, conviction and discharge, Mr Price was already suffering from Post-Traumatic Stress Disorder and Major Depressive Disorder. The effect which the subsequent events had upon Mr Price appear from the evidence to constitute an increase in the level of his symptoms of his existing psychological injury.
The clinical notes of Dr Bhandari describe the subsequent events as exacerbating Mr Price’s symptoms of post traumatic stress disorder. In his report dated 12 August 2020 to the treating general practitioner, Dr Parker, Dr Bhandari reported:
“Mr Price’s has reported aggravation in post-traumatic stress disorder. He supported a full range of symptoms consistent with Post-Traumatic Stress Disorder, particularly related to the death of children, during the course of Mr Price’s employment as an operational Police Officer.
Mr Price’s emotional state has also been impacted upon [by] charges laid against him, and his subsequent court matter and conviction, in which he was found guilty of indecent assault against a minor. Mr Price indicated he was currently engaged in an appeals process related to this conviction.”
The Panel accepts that the subsequent events constituted by the investigation, arrest, charging and conviction for pre-employment offences exacerbated the symptoms of Post-Traumatic Stress Disorder and Major Depressive Condition. Although those events would be deeply distressing, in the absence of the conditions caused by the primary psychological injury, they were unlikely to give rise to a psychological or psychiatric condition. Mr Price is accordingly assessed as falling within the second of the Oakley categories, and the Panel, upon reassessment, makes no deduction in respect of further injury.
The appellant further submitted:
“Ultimately however, whether such an apportionment ought to occur requires analysis and consideration of the three (3) causal scenarios set out in Johnson. In the appellant’s submission, the application of said principles constitute substantive liability issues, this jurisdiction for which rests with a Member for determination”.
The Panel does not accept that submission. In Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd[9] (Bindah) Emmett AJA said (at [109], [110]):
“However, that is not to say that there is no scope for an approved medical specialist or Appeal Panel to make findings of fact necessary for the performance of the function that they are given under the Management Act. Questions of causation are not foreign to medical disputes within the meaning of that term when used in the Management Act. A medical dispute is a dispute about or a question about any of the matters set out in s 319. Those matters include the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. The words in bold in relation to each of those matters call for a determination of a causal connection. Thus, the language of causal connection is squarely within the definition of ‘medical dispute’. Having regard to the conclusive effect of s 326, it is desirable to avoid drawing a rigid distinction between jurisdiction to decide issues of liability and jurisdiction to decide medical issues. There is no bright line delineating causation from medical evidence. Issues of causation may well involve disputes between medical experts that must be resolved by an approved medical specialist or by an Appeal Panel (see Zanardo v Tolevski [2013] NSWCA 449 at [35]).”
[9] [2014] NSWCA 264.

For the reasons set out by Emmett AJA in Bindah, the Panel is satisfied that the Medical Assessor did not exceed his jurisdiction by considering the further injury. The error identified consists in the fact that the Medical Assessor considered only the cause of the further injury without considering whether the further injury met the second test or category in Oakley.

Areas of function

The Medical Assessor assessed Mr Price in accordance with chapter 11 of the Guidelines. The Guidelines require that the worker be assessed with respect to six areas of function, “self-care and personal hygiene”, “social and recreational activities”, “travel”, “social functioning (relationships)”, “concentration, persistence and pace” and “employability”.
The injured worker is to be assessed as falling within five classes in each of the areas of function, ranging from no or minor deficit to total impairment[10].
[10] Guidelines, paragraph 11.11.
The appellant submits that the Medical Assessor has fallen into error in assessing the areas of function “self-care and personal hygiene”, “travel”, “social functioning (relationships)” and “concentration, persistence and pace”. In respect of each of those areas of function the appellant submits that the assessment by the Medical Assessor was not available on the evidence. The submissions of the parties with respect to each of those areas of function are discussed below.
The Panel notes that paragraph 11.12 of the Guidelines provides that the “examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the persons age, sex and cultural norms.” The assessment of the worker as falling within a particular Class is a matter of clinical judgement based on the evidence. As noted by the parties in their respective submissions, Campbell J in Ferguson v State of New South Wales[11] cited with approval the decision of the Appeal Panel in NSW Police Force v Daniel Wark[12]: “The judgement as to the significance or otherwise of the matters raised in the consultation is very much a matter for assessment by the clinician with the responsibility of conducting his/her enquiries with the applicant face to face.” The Panel approaches the submissions of the parties with respect to the areas of function dispute in the light of those comments.
[11] [2017] NSWSC 887 at [23].
[12] [2012] NSWWCCMA 36 at [33].

Self-care and personal hygiene

The appellant noted that the Medical Assessor had assessed Mr Price as falling within Class 2 (mild impairment) in respect of this area of function. The appellant submitted that “such categorisation was based on incorrect criteria with a Class 3 (moderate impairment) rating representing the correct rating.”
The appellant noted that the descriptors set out in Table 11.1 of the Guidelines relevantly provided:
“Class 2: Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3: Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.”
The appellant submitted that matters recorded by the Medical Assessor were contradicted by the written material, citing the Medical Assessor’s record that Mr Price cooks dinner for the family, pointing to the statement by his partner, Ms Scott, that Mr Price no longer participated in domestic activities and she considered herself to have become Mr Price’s carer. The appellant submitted that Mr Price was not able to look after himself adequately, noting that this would require daily bathing, changing of clothes together with tasks such as grocery shopping.
The respondent submitted that the Medical Assessor was entitled to rely on the history provided by Mr Price at the time of examination. That history warranted a Class 2 assessment.
Under the heading “Social activities/ADL” the Medical Assessor recorded:
“He usually rises at about 9 AM and tidies up around the house. For six or seven hours each day, he plays computer games, favouring multiple genres, including strategy, first person shooters and role-playing games. He walks the dog. He often misses breakfast and lunch but will cook dinner for the family. He showers about every three days often after prompting by Sally.”
The Medical Assessor noted Mr Price’s statement and the reports of the treating psychiatrist, Dr Bhandari, as well as the respective independent medical experts, Dr Takyar and Dr Anand. He noted that Dr Takyar had assigned a Class 3 impairment in respect of this area of function with a history of bathing five days a week and changing his clothes generally every three days. The Medical Assessor noted that Mr Price had informed Dr Takyar that he enjoyed cooking prior to his injury but only tends to cook once a week. He reported that he no longer carried out shopping because of anger and anxiety issues. He reported having previously attended to half the domestic chores but now performed a few chores, with prompting.
The Medical Assessor commented:
“Mr Price is home alone much of the time. While his wife is at work, he cleans the house and prepares the evening meal. He skips meals but always eats one decent meal at the end of the day. He neglects hygiene and requires prompting to shower every few days. He goes shopping with his wife when she is available but can do so independently when necessary. I consider his impairment to be mild.”
In the PIRS[TR1] [BD2] Rating Form the Medical Assessor gave his reasons for assigning Class 2 in this area of function; “Mr Price is often home alone. He does housework and prepares the family evening meal. He usually neglects breakfast and lunch but eats a good quality dinner. He drinks to excess and has put on weight.”
The psychiatrist, Dr Anand, who examined Mr Price a behalf of the respondent, assessed Mr Price’s falling within Class 2 noting;
“It appears that he is able to maintain his ADL’s independently upon review today he appeared to be maintaining a reasonable level of hygiene. In a typical week, Mr Price said that he does not go out the house much. He is able to do the chores around the house. He is also able to cook. He walks the dog on a regular basis. He does have meals together with his family most days. He does a bit of gardening.”
The history obtained by the Medical Assessor upon examination is substantially corroborated by the history obtained by Dr Anand. The assignment of Mr Price as falling within Class 2 rather than Class 3 is a matter of clinical judgement. There is a difference of opinion between Dr Takyar and Dr Anand and the Medical Assessor, but on the evidence provided by Mr Price upon examination, the Panel accepts that it was open to the Medical Assessor to assess Mr Price as falling within Class 2 (mild impairment) in respect of this area of function.

Travel

The appellant submitted that, on the evidence, the Medical Assessor should have assigned Class 3 (moderate impairment) in respect of this area of function instead of Class 2 (mild impairment). The appellant referred to the relevant descriptors found in Table 11.3 of the Guidelines:
“Class 2-Mild impairment: Can travel without support person, but only in a familiar area such as local shops, visiting a neighbour.
Class 3 – Moderate impairment: Cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.”
The appellant submitted that the evidence relating to Mr Price previously demonstrating episodes of road rage including an incident when he punched a hole in his windscreen, established a need for the presence of a support person “to monitor and curtail his outbursts” so that he should be considered as being incapable of travelling on his own.
The respondent submitted that the Medical Assessor was entitled to assess Mr Price as having mild impairment in respect of this area of function. Mr Price had informed the Medical Assessor that he was able to travel locally without a support person and the Medical Assessor was entitled to accept that.
The Panel does not accept that exhibiting anger while driving is an appropriate indicium of inability to travel. The Court of Appeal in Ballas v Department of Education[13] (Ballas) held that evidence of conduct had to be considered so as to be assigned to the appropriate area of function. To assess impairment of a particular area of function with regard to conduct that was more properly regarded as relevant to the assessment of a different area of function was to fall into error:
“Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to “social and recreational activities”[TR3] on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.”[TR4]
Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to “self care and personal hygiene”, “social and recreational activities”, “travel”, “social functioning (relationships)”, “concentration, persistence and pace” or “employability”. [TR5] This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS considering an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation”[14].
[13] [2020] NSWCA 82
[14]Ballas at [93], [94] per Bell P and Payne AJA, Emmett AJA agreeing.
The Panel does not accept that the expression of anger whilst driving is appropriately assessed as relevant to the area of function, “travel”. The fact that a worker may express anger whilst functioning in the community is conduct that is appropriately assessed in the area of “social functioning” and not “travel”.
The Medical Assessor noted, on the basis of the history given upon examination, “He still drives, although he is anxious and prone to road rages. He shops in the local area, about a 10 minute drive from his home. He drives to Broadmeadow, about one hour from his home, to see Dr Bhandari. He is reluctant to travel further.”
The Medical Assessor noted that Dr Takyar had assessed moderate impairment for travel, stating:
“He no longer travels to places locally by himself and needs a support person as he said that his psychiatrist [has] been so concerned by his agitation and anger to such a degree, that he has got into fights with others, including at Woolworths.”
The Medical Assessor commented that this history was different to that obtained on examination when Mr Price had told the Medical Assessor that he preferred to stay home but was able to travel independently, including driving his car. This included driving to see his treating psychiatrist. The Medical Assessor was entitled to accept the account provided by Mr Price upon examination. On that basis the Panel is satisfied that Mr Price was appropriately assessed as falling within Class 2 (mild impairment).

Social functioning

The appellant noted that the Medical Assessor had assessed Mr Price as falling within Class 2 in the area of social functioning. The appellant noted the relevant descriptors in Table 11.4 of the Guidelines:
“Class 2 – Mild impairment: Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.
Class 3 – Moderate impairment: Previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after the children.”
The appellant pointed to the evidence of Mr Price’s partner, Ms Scott, who spoke of the absence of intimate relationship with Mr Price no longer assisting with the care of the children. The appellant submitted that the relationship between Mr Price and his partner was one of dependency as opposed to a partnership. The term “separation”, where used in the descriptor, should be interpreted as including the breakdown of the relationship although physical separation had not occurred. The appropriate classification, it was submitted, was Class 3 (moderate impairment).
The respondent submitted that the Medical Assessor had appropriately assessed Class 2 on the basis of the information provided by Mr Price upon examination.
The Medical Assessor recorded that Mr Price rarely got together with his brothers or his mother. He noted that Mr Price had been estranged from his father for many years. He no longer saw friends. The Medical Assessor recorded: “There is some stress in his relationship with Sally, but he regards her as supportive and caring. He is close to his children, stepchildren, brothers and mother. He has lost friends through his social disengagement but also argumentativeness.” The Medical Assessor repeated those reasons in the PIRS Rating Form.
The independent medical expert, Dr Takyar, assessed Mr Price as suffering mild impairment in respect of this area of function. He noted “He described the loss of friendships and he said that friends no longer talk to him, and he described withdrawal socially, as well as a deterioration in the relationship with his fiancée in the context of strain at times.”
Independent medical expert, Dr Anand, also assessed Mr Price as suffering mild impairment in respect of this area of function. He noted:
“His marriage is not doing well, and their relationship is strained but she continues to be his main support. He has distanced himself from most of his friends. He stated that he has no friends left. He does talk to his brother who lives interstate. He stated that he does not have any friends locally.”
The history provided to both independent medical experts is similar to that provided to the Medical Assessor. On the basis of that evidence, the Panel is satisfied that it was open to the Medical Assessor and appropriate to assess Mr Price as falling within Class 2 in respect of that area of function.

Concentration, persistence and pace

The appellant submitted that the Medical Assessor had incorrectly placed Mr Price within Class 2 in respect of this area of function because of his participation with video games six or seven hours a day, although the Medical Assessor had accepted that Mr Price struggles with reading and watching television. The appellant submitted:
“Without explanation, Dr Andrews has ascribed a degree of mental rigour as a prerequisite to the playing video games. Absent any detail of the actual games played, nor how the appellant performance, in light of his other described difficulties, a class 3 rating ought to be seen as correct.”
The respondent noted the relevant descriptors:
“Class 2 – Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods up to 30 minutes, then feels fatigued or develops headache.
Class 3 – Moderate impairment: Unable to read more than newspaper articles. Finds it difficult to follow complex instructions (e.g. operating manuals, building plans), make significant repairs to motor vehicle, type long documents, follow a pattern for making clothes, tapestry or knitting.”
The Medical Assessor noted that Mr Price “gave a coherent account of his history over a 70 minute interview.” He noted that Dr Takyar had assessed Mr Price as suffering moderate impairment in respect of this area of function, noting that Dr Takyar had reported:
“He presented with mild to moderate memory dysfunction during the review, and noted that he tends to lose keys, forgets times and dates of appointments and has to use his phone a lot. Mr Price also reported usually after 20 or 30 minutes of watching TV he realises he is not following hot (sic) and then loses interest and keeps watching. He added that when he received emails he has to read them four or five times then has to have his fiancée help him to understand them.”
The Medical Assessor noted that Mr Price had informed him that he read little and did not watch television. He confirmed that Mr Price had said he needed to reread passages and sometimes ask his partner for help. He said: “On the other hand, he plays video games from several genres for 6 to 7 hours a day. Some of these are strategy games requiring attention and engagement. I detected no evidence of cognitive difficulties during a 70 minute interview. I consider his impairment to be mild.”.
Dr Anand assess Mr Price as suffering mild impairment (Class 2) stating:
“There were no concentration issues were identified on the review today. He was able to give extremely good timelines. He spends a lot of time playing Xbox, mainly the game ‘Open World’, which imitates a real-world setting that involves a lot of strategising and planning to get ahead in the game. As such this is most consistent with a mild impairment.”
The Panel does not accept the appellant’s submission that the Medical Assessor relied solely upon Mr Price’s activity playing video games. The Medical Assessor observed that he detected no evidence of cognitive difficulties during a 70 minute interview which was conducted by way of video conference. That is consistent with the observations made by Dr Anand.
The Panel accepts that the ability to maintain concentration during an extended examination such as that conducted by the Medical Assessor and by Dr Anand is a significant determinant of the ability to demonstrate concentration persistence and pace. Based upon the observations of the Medical Assessor as to Mr Price’s ability to participate in the lengthy examination together with the ability to spend extended periods playing video games that, on the evidence of Dr Anand, included strategic reasoning, it was appropriate for the Medical Assessor to assess Mr Price as falling within Class 2 respect of this area of function.
The Panel is satisfied that no use of incorrect criteria or demonstrable error has been established respect to the assessment of the areas of function complained of. On the evidence, those assessments were open to the Medical Assessor and were appropriate.

Calculation error

The PIRS Rating Form sets out the information required to calculate the level of impairment in accordance with chapter 11 of the Guidelines. The Medical Assessor assessed scores ranked in ascending order; 2, 2, 2, 2, 3, 5. The Medical Assessor correctly noted the median score as two, but incorrectly aggregated the scores to total 15 when the correct total was 16.
The respondent does not dispute this obvious error and both parties note that it is an error capable of rectification pursuant to s 325(3) or s 329 of the 1998 Act. However, as error has been identified with regard to the calculation of impairment overall, it is appropriate that this error also be corrected by the Panel.
Accepting that the aggregate score is 16 and the median score is two, the Panel determines that the impairment should be assessed pursuant to Table 11.7 of the Guidelines to be 9% WPI.
There is no evidence of any previous injury or pre-existing condition at the time of the commencement of Mr Price’s entry into service with the respondent and no deduction is to be made pursuant to s 323 the 1998 Act. The Medical Assessor was satisfied that no adjustment for the effects of treatment pursuant to paragraph 1.32 of the Guidelines was appropriate. No submissions were addressed to this aspect of the assessment and the Panel agrees that treatment has not resulted in “apparent substantial or total elimination of the claimant’s permanent impairment”.

The Panel, as indicated above, is satisfied that the subsequent injury has exacerbated the symptoms of the primary psychological injury and no deduction is warranted in respect of those subsequent events.
For these reasons, the Appeal Panel has determined that the MAC issued on 28 February 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

PERSONAL INJURY COMMISSION

APPEAL PANEL

MEDICAL ASSESSMENT CERTIFICATE

Injuries received after 1 January 2002

Matter Number:	W6170/21
Applicant:	Anthony Price
Respondent:	State of NSW (NSW Police Force)

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.

The Appeal Panel revokes the Medical Assessment Certificate of Dr Douglas Andrews and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Table - Whole Person Impairment (WPI)

Body Part or system

Date of Injury

Chapter, page and paragraph number in NSW workers compensation guidelines

Chapter, page, paragraph, figure and table numbers in AMA 5 Guides

% WPI

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Sub-total/s % WPI (after any deductions in column 6)

1.Psychiatric / psychological

1/02/2017

Chapter 11, p 54-60. Tables 11.1,11. 3, 11.4 and 11.5

Table 11.7

Not applicable

Nil

Total % WPI (the Combined Table values of all sub-totals)

[TR1]write in full in first instance

[BD2]"PIRS Rating Form" is the title of the form used in the MAC

[TR3]to be single quotation marks within a main quote

[TR4]no open quotation mark and needs to be single quotation mark

[TR5]to be single quotation marks

[2022] NSWPICMP 264

28 June 2022